Chattisgarh High Court
Vikas Agrawal vs Smt. N. Manjula Aiyyar on 1 November, 2021
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
MA No. 3 of 2021
Reserved on 20/10/2021
Delivered on 01/11/2021
1. Vikas Agrawal, aged about 33 years S/o M.K. Agrawal R/o Lodhipara,
Sarkanda Bilaspur, Tahsil and District Bilaspur (C.G.).
2. Prakash Shriwas, aged about 29 years, S/o Late Dilip Shriwas R/o
Kududand Chandani Chowk Bilaspur, Tahsil & District Bilaspur (C.G.).
---- Appellants
Versus
1. Smt. N. Manjula Aiyyar, aged 47 years D/o Late B. Prakash Rao, W/o R.
Narayan Aiyyar, R/o Ward No.16, T-47/5th I.T.I. Compound Koni Bilaspur,
District Bilaspur (C.G.).
2. Vinod Kumar Rao, aged about 49 years S/o Late B. Prakash Rao, R/o
Kushabhau Thakre Ward, G-8 Engineering Colony, Jagdalpur, Bastar,
District Jagdalpur (Bastar) (CG).
3. State of Chhattisgarh Through: The Collector Bilaspur, Tahsil and District
Bilaspur (C.G.).
---- Respondent
For Appellants : Mr. Ratnesh Agrawal, Adv.
For Respondent No. 1 : Mr. Lalit Paswan
For Respondent No.2 : None
For State : Mr. D.C. Verma, Govt. Adv.
Hon'ble Shri Justice Deepak Kumar Tiwari
CAV JUDGMENT
Heard.
1. This appeal has been preferred under Order 43 Rule1 (r) of the Code of
Civil Procedure 1908 (henceforth 'the CPC') against the order dated
15/01/2021 in Civil Suit No. 39-A/2020 passed by the 5 th Additional
District Judge, Bilaspur in the matter of Smt. N. Manjula Aiyyar v. Vikas
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Agrawal and others, wherein the application filed by respondent
No.1/plaintiff under Order 39 Rule 1 & 2 read with Section 151 of the CPC
has been allowed and injunction order has been passed against the
appellants.
2. Facts
of the case in brief are that respondent No.1/plaintiff filed a civil suit
for declaration of title and permanent injunction, wherein it was mentioned
that part of land bearing Khasara No. 2219/2, admeasuring area 0.52 acre
situated at Village Sendri, Tahsil and District Bilaspur recorded in the name
of respondent No.1/plaintiff and defendant No.3. On the basis of fraud, the
appellants/defendant Nos. 1 & 2 obtained power of attorney from
respondent No.1/plaintiff and defendant No. 3 in respect of the suit land,
and thereafter got sale-deed executed on 10/12/2019 without consideration
of their names. Therefore, the sale-deed is not binding upon the respondent
No.1/plaintiff. The appellants are trying to dispossess the respondent No.1/
plaintiff and initiating mutation proceeding on the basis of sale-deed.
Therefore, the suit had been filed in which application under Order 39 Rule
1 & 2 read with 151 of the CPC was filed. After hearing the said
application, the impugned order has been passed.
3. It is undisputed that on the basis of registered power of attorney, as given
by the respondent No.1/plaintiff and defendant No.3 on 08/11/2019 in
favour of the appellants, the appellants have executed registered sale-deed
of the suit property in their own name on 11/12/2019 and thereafter they
have become both purchaser and seller.
4. Counsel for the appellants has submitted that the impugned order is bad,
perverse and contrary to the facts and circumstances of the case, thus liable
to be set-aside. He has further submitted that the trial Court has wrongly
concluded that respondent No.1/plaintiff is in possession of the suit land.
The respondent No.1/plaintiff executed registered power of attorney and
thereafter obtained consideration amount in his bank account. The
necessary consideration for passing the temporary injunction is not in
favour of the respondent No.1/plaintiff, however, erroneous order has been
passed. Therefore, it is prayed to set-aside the impugned order.
5. Counsel for the appellants has submitted that while passing the impugned
order, the learned trial Court ignored the certain principles that under the
power of attorney, a person is authorized to act as the agent of the person
granting it and to do anything (in and with his own name and signature) by
the authority of the donor of the power. Section 2 of the Power of Attorney
Act, 1882 declares that everything so done 'shall be as effectual in law as if
it has been done by the donee of the power in the name and with the
signature of the donor thereof and as such the act committed by the holder
of the power of attorney would be presumed to be an act committed by the
person who gives power of attorney. The learned counsel for the appellants
has placed reliance on Smt. Shail Devi Sarav v. Smt. Janakibai Gupta,
2001 (2) CGLJ, 493.
6. The point for determination before this Court is that whether the trial Court
while passing the impugned order has properly exercised its discretionary
jurisdiction under Order 39 Rule 1 & 2 of the CPC for grant of temporary
injunction.
7. I have heard learned counsel for the parties and perused the records.
8. Apparently, when the appellants on the basis of alleged registered sale-deed
filed the application for mutation then on 11/11/2020, objection was raised
by the respondent No.1/plaintiff that the appellants have played a fraud and
cheated them, so on such pleading the learned Court gave a finding that
serious question are to be tried. It is also established that the suit land is
ancestral property of the respondent No.1/plaintiff. So the trial Court found
that prima-facie the case exists in favour of the respondent No.1/plaintiff.
The Court also considered all the aspects, balance of convenience and
irreparable injury for granting temporary injunction, and passed the
impugned order by exercising discretionary jurisdiction which is vested in
the trial Court for passing the order under Order 39 Rule 1 & 2 of the CPC.
9. In view of the above, this Court does not find any illegality in passing the
impugned order and the impugned order appears to be genuine and proper.
10. Accordingly, the appeal is deserves to be and is hereby dismissed.
11. There shall be no order as to cost.
Sd/-
(Deepak Kumar Tiwari)
Judge
Rahul
